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2025 DIGILAW 656 (KER)

T. K. krishnankutty v. State Of Kerala

2025-03-19

P.G.AJITHKUMAR

body2025
JUDGMENT : (P.G. AJITHKUMAR, J.) The appellant was convicted as per the judgment dated 29.06.2009 by the Court of Enquiry Commissioner and Special Judge, Kottayam in C.C.No.84 of 2008 for the offences punishable under Sections 7 and 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988 (PC Act). The said judgment of conviction and consequent sentence are under challenge in this appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (Code). 2. The appellant was the Village Officer, Vathikudi. PW1 approached him to get the property in the name of his father mutated and land tax paid. The appellant allegedly demanded bribe of Rs. 250/-. PW1 lodged a complaint and after registering a crime based on that complaint, PW6, Deputy Superintendent of Police, Vigilance and Anti- Corruption Bureau (VACB), laid a trap. PW1 offered a bribe of Rs.250/- at about 12.30 p.m. on 24.01.2001 and the appellant accepted it at the village office. That resulted in the prosecution. 3. When the charge was framed and read over, the appellant pleaded not guilty. The prosecution, therefore, examined PWs.1 to 8 and proved Exts.P1 to P18 and identified MOs.1 to 12 to prove the charge. After closing the prosecution evidence, the appellant was questioned under Section 313(1) (b) of the Code. He denied the incriminating circumstances appeared against him in evidence. He filed a statement as well. In the statement he stated that PW1 came to his office 2-3 days before and when there occurred some delay in searching out his file, he got infuriated and left the office. On 24.01.2001 he came again to pay the tax. The appellant asked CW4 Soman, who was the staff in the village office, to prepare the receipt for receiving land tax from PW1. He then placed money on the table. The appellant believing that that was a Rs.100/- note took it. Immediately, 5-6 persons rammed inside and arrested him. Thus, he maintained that he was innocent. No defence evidence was let in. The trial court found that the evidence tendered by the prosecution was sufficient to prove demand and acceptance of illegal gratification by the appellant. The appellant assails those findings entered into by the Special Court and also his conviction. 4. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor. 5. No defence evidence was let in. The trial court found that the evidence tendered by the prosecution was sufficient to prove demand and acceptance of illegal gratification by the appellant. The appellant assails those findings entered into by the Special Court and also his conviction. 4. Heard the learned counsel for the appellant and the learned Senior Public Prosecutor. 5. The appellant was the Village Officer, Vathikudi during the relevant time. That fact is beyond dispute. It was PW3, who accorded sanction for prosecution. Ext.P5 is the proceedings granting sanction. PW3 was the Additional Commissioner (Land Revenue). He deposed before the court that after considering the materials placed before him, he accorded sanction to prosecute the appellant. Competence of PW3 is challenged by the appellant saying that it was the Commissioner, who ought to have accorded sanction. PW3 deposed that in terms of the work allotment, he was the person empowered to remove Village Officers and therefore he was competent to accord sanction. The said version remains intact and reliable. In the case of officers employed in the affairs of the State and removable only under orders of the State Government, sanction for prosecution shall be granted by the Government as per clause (b) of sub-section (1) of Section 19 of the PC Act. In the case of others, the authority competent to remove is empowered to accord sanction as per clause (c) of sub-section (1) of Section 19 of the PC Act. In the circumstances, PW3 was competent to accord sanction and Ext.P5 is a valid sanction to prosecute the appellant. 6. PW1 is the complainant. His version is that his father obtained patta for 1½ Acres of land and his father approached the Village Office, Vathikudi several times to get it mutated. Since there was a delay, PW1 went to the village office on a day in December 2000. The appellant was the village officer. It is the version of PW1 that the appellant demanded from him Rs.250/- as bribe. He was not prepared to pay. Rather, money was not with him. He again went to the village office on 22.01.2001. The appellant repeated the demand. In the said circumstances, PW1 went to the Idukki Office of the VACB and gave the complaint. He proved Ext.P1 as the complaint he has lodged before PW6, Deputy Superintendent of Police. 7. He was not prepared to pay. Rather, money was not with him. He again went to the village office on 22.01.2001. The appellant repeated the demand. In the said circumstances, PW1 went to the Idukki Office of the VACB and gave the complaint. He proved Ext.P1 as the complaint he has lodged before PW6, Deputy Superintendent of Police. 7. PW6 deposed the details regarding the plot devised to trap the appellant. In the presence of PW2, an Assistant Engineer and another official witnesses, Rs.250/- (two 100 rupee notes and one 50 rupee note) given by PW1 were tainted with phenolphthalein powder and entrusted with PW1 to be paid to the appellant on his demand. Ext.P3 is the mahazar prepared for the said process. PW1 deposed as to what happened thereafter. He went to the village office, Vathikudi and paid the tainted money to the appellant, who received the same and placed it inside his purse. After making the payment, PW1, as instructed earlier, gave signal to PW6, which followed apprehension of the appellant and seizure of current notes from his possession. 8. Besides, PW6, PW2 also deposed in detail about the seizure. Both of them deposed in detail about the procedure followed for detecting and seizing of the currency notes and also the procedure of conducting the phenolphthalein test. Ext.P4 is the mahazar prepared in regard to the said matters. MO1, MO1(a) and (b) are the tainted currency notes. MO2 to MO10 are the sample bottles containing plain and discoloured water used for the test. MO11 is the shirt worn by the appellant at the time of occurrence and MO12 is the purse from which the tainted currency notes were seized. 9. Both PW2 and PW6 deposed that while the appellant immersed his right fingers in water, it got discoloured, pointing to the presence of phenolphthalein powder on his fingers. PW2 deposed that as instructed by PW6, he took a purse from the pocket of the appellant. MO1, MO1(a) and MO1(b) currency notes were there in the purse. Other currency notes were also there in the purse. All currency notes in the purse turned positive in the phenolphthalein test. All the above overt acts were recorded in Ext.P4 mahazar. 10. The contention of the learned counsel for the appellant is that the probabilities are more in favour of what has been stated by the appellant. Other currency notes were also there in the purse. All currency notes in the purse turned positive in the phenolphthalein test. All the above overt acts were recorded in Ext.P4 mahazar. 10. The contention of the learned counsel for the appellant is that the probabilities are more in favour of what has been stated by the appellant. Believing that Rs.100/- placed by PW1 on the table was for making payment of the tax, he took it. He inserted the notes in his pocket on seeing a batch of persons rammed inside. It is explained that the appellant did not realise that there were three currency notes and placed it by PW1 on the table as bribe. It is also the submission that after the appellant asking CW4 Soman to prepare the tax receipt, PW1 placed currency notes on the table. By not examining Soman, the prosecution has suppressed the real facts and that is fatal to the prosecution. 11. Although Sri.Soman was not examined, PW4, who was a Villageman in Vathikudi village office was examined. He was also present on that day at the village office. Of course, he maintained that he did not see PW1 making payment of gratification to the appellant, but he deposed that he witnessed the procedure followed by the vigilance for seizing the tainted notes from the possession of the appellant. It was he who intimated the relatives of the appellant about the vigilance action over phone. Therefore, the non-examination of Sri.Soman cannot be banked upon by the appellant to contend that evidence of PWs.1, 2 and 6 is unreliable. 12. Ext.P7 is the attendance register and Ext.P10 is the movement register in the Vathikudi Village Office during the relevant period. Those were seized under Ext.P6 mahazar. PW4 is a witness to it. From the said documents, presence of the appellant in the office on 24.01.2001 stands proved. That is not a disputed fact either. Land tax was received from PW1 on the said date and a receipt was issued. Ext.P9 is the receipt book and receipt No.38 in it is concerning payment of tax in the name of the father of PW1. The said evidence tallies with the version of PW1 that on 24.01.2001 tax was collected from him and mutation effected in respect of the property belonging to his father. 13. Ext.P9 is the receipt book and receipt No.38 in it is concerning payment of tax in the name of the father of PW1. The said evidence tallies with the version of PW1 that on 24.01.2001 tax was collected from him and mutation effected in respect of the property belonging to his father. 13. As stated, evidence of PWs.1, 2 and 6 together with Ext.P4 and materials objects proved that the appellant received Rs.250/- from PW1 on 24.01.2001. While the prosecution alleges that the appellant received that amount as illegal gratification, he maintains that he did not demand any gratification and the prosecution could not prove such a demand. The learned counsel for the appellant would submit that the father of PW1, who was said to have approached the appellant several times was not examined. Had there been such incidents and complaints, he should have been examined. He did not raise any complaint as well. It is further alleged that PW1 had reasons to axe grind against the appellant since he did not take timely action on the previous occasion when he went to pay land tax. This fact was affirmed by PW4 during cross-examination. 14. It is urged that when a loyal prosecution witness deposed in that manner, the same goes a long way in support of the defence case. Only person who deposed against the demand by the appellant for illegal gratification is PW1. It is very pertinent to note that no independent witness was sent along with PW1, at least, to overhear the transaction. PW6 conspicuously avoided sending any independent witnesses along with PW1. in the absence of any such independent witness, the version of PW1, who was inimical to the appellant, cannot be placed reliance on, according to the learned counsel for the appellant. 15. During cross-examination, PW1 was asked about the incident of occasioning delay in searching out the file. He categorically denied having occurred such an incident. His consistent version has been that on both the occasions he approached the appellant requesting to receive land tax, but he insisted on payment of gratification. On going through the entire version of PW1, it can be said that he deposed in court in a natural way and there is no reason to disbelieve his assertions. His consistent version has been that on both the occasions he approached the appellant requesting to receive land tax, but he insisted on payment of gratification. On going through the entire version of PW1, it can be said that he deposed in court in a natural way and there is no reason to disbelieve his assertions. Even on believing the version of PW4 that PW1 got agitated on the previous occasions, that by itself would not make his evidence unreliable when enough independent corroboration is available to render support to the version of PW1. 16. Yet another aspect pointed out by the learned counsel for the appellant to disbelieve PW1 is that he gave a discrepant version regarding the dates on which he approached the village officer. In Ext.P1 he maintained that on 13.12.2000 he went for the first time to the village office. It was on 22.01.2001 he went to the village office second time. Thereafter, on 24.01.2001 he went to the village office, on which day the incident in question occurred. During chief- examination PW1 could not remember and say the first date. But during cross-examination, he stated that date. Although it was suggested that he stated after perusing the records, he denied and his version is appeared quite bona fide. Thus, the inconsistency in his evidence regarding the dates on which he went to the village office does not create any doubt. 17. A Constitution Bench of the Apex Court in Neeraj Dutta v. State (Govt. of NCT of Delhi) [(2023) 4 SCC 731] considered the law relating to the standard of proof and the nature of evidence required in a case where the charge is for the offences punishable under Sections 7 and/or 13(1)(d) of the PC Act. The conflict between various decisions of the Apex Court in the above regard was set at rest as well. The following are the expositions of law laid down by the Apex Court: “88. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. What emerges from the aforesaid discussion is summarised as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe- giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.” 18. In order to convict a person for offences under Sections 7 and 13(1)(d) of the PC Act, proof of demand and acceptance of illegal gratification is sine qua non. As held by the Apex Court in clause (e) of paragraph No.88 in the aforesaid decision, in a case where foundational facts are established, the court can presume that there was demand and acceptance of illegal gratification. Evidence of PW1 and other circumstances have to be considered in the light of the said proposition of law to decide whether there was a demand for gratification by the appellant. 19. As stated, the evidence of PW1 is convincing. He deposed about the demand for gratification on the previous two occasions. The case set forth by the appellant that he kept the money in his pocket believing that it was paid towards land tax was fully improbabilised from the facts that the tainted notes were found inside his purse and the other notes in the purse were also tainted with phenolphthalein powder obviously on account of contact with the notes in question, namely, MO1, MO1(a) and MO1(b). The events followed that the appellant’s right fingers turned pink in the test and his behaviour are relevant under Section 8 of the Evidence Act and would render corroboration to the evidence of PW1. In the said circumstances, there can be only one conclusion that the appellant received Rs.250/- towards illegal gratification from PW1 for effecting mutation and receiving land tax in respect of the property belonging to his father. The findings of the Special Court that the charge against the appellant in the above regard has been proved beyond doubt is therefore liable to be confirmed. Hence, the conviction of the appellant for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act is confirmed. 20. The findings of the Special Court that the charge against the appellant in the above regard has been proved beyond doubt is therefore liable to be confirmed. Hence, the conviction of the appellant for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act is confirmed. 20. The appellant was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.5,000/- for the offence under Section Section 7 of the PC Act. He was further sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.5,000/- for the offence under Section 13(2) of the PC Act. There is no allegation that the appellant involved in any other crime. As is seen from the records the appellant is aged about 70 years now. Considering the nature and circumstances of the offence, the age of the appellant and the delay occasioned to conclude the proceedings, I am of the view that the term of substantive sentence is liable to be reduced. Accordingly, the appellant is sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for a period of three months each under Sections 7 and 13(2) of the PC Act. The terms of substantive sentence shall run concurrently. Set off, if any, is allowed. The appeal is thus allowed in part.